Donald Moeller v. Douglas Weber
Filing
OPINION FILED - THE COURT: STEVEN M. COLLOTON, DUANE BENTON and RICHARD G. KOPF. Richard G. Kopf, Authoring Judge (PUBLISHED) [3817471] [10-2069]
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 10-2069
___________
Donald E. Moeller,
*
*
Appellant,
*
* Appeal from the United States
v.
* District Court for the
* District of South Dakota.
Douglas Weber, Warden,
*
South Dakota State Penitentiary,
*
*
Appellee.
*
___________
Submitted: June 16, 2011
Filed: August 12, 2011
___________
Before COLLOTON and BENTON, Circuit Judges, and KOPF,1 District Judge.
___________
KOPF, District Judge.
A South Dakota jury convicted Donald E. Moeller of first-degree murder and
first-degree rape, and sentenced him to death. After the South Dakota Supreme Court
affirmed his conviction and sentence and upheld the denial of his state habeas corpus
1
The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska, sitting by designation.
Appellate Case: 10-2069
Page: 1
Date Filed: 08/12/2011 Entry ID: 3817471
petition, Moeller filed a petition for writ of habeas corpus under 28 U.S.C. § 2254.
The district court2 denied Moeller’s petition and we affirm.
I.
On the evening of May 8, 1990, nine-year-old Rebecca O’Connell visited a
convenience store. Later that night, O’Connell’s parents reported her missing, and
two men found her body the following morning in a wooded area in Lincoln County,
South Dakota. An autopsy showed that O’Connell had been repeatedly raped,
sustained knife wounds to multiple areas of her body, and ultimately died as a result
of a cut to her jugular vein. State v. Moeller, 616 N.W.2d 424, 430 (S.D. 2000)
(“Moeller I”).
After a trial, a jury convicted Moeller of first-degree murder and first-degree
rape, and sentenced him to death. The South Dakota Supreme Court reversed the
conviction because prior bad acts evidence had been improperly introduced at trial.
State v. Moeller, 548 N.W.2d 465, 468 (S.D. 1996). The State tried Moeller a second
time for the same crimes. Moeller had the same counsel during both trials.
Prior to the start of Moeller’s second trial, the trial court set January 13, 1997,
as the date for a Daubert hearing regarding the admissibility of DNA evidence. On
August 23, 1996, Moeller’s counsel requested a continuance of the hearing, which the
trial court denied. On December 11, 1996, prosecutors identified the DNA evidence
they planned to introduce at trial, which would be the subject of the Daubert hearing.3
2
The Honorable Lawrence L. Piersol, United States District Judge for the
District of South Dakota.
3
The State indicated that it planned to introduce evidence regarding several
different DNA markers, including the D1S80 marker, the DQ-alpha marker, and the
APO-B marker.
-2-
Appellate Case: 10-2069
Page: 2
Date Filed: 08/12/2011 Entry ID: 3817471
Moeller’s counsel again sought a continuance of the Daubert hearing, which the trial
court granted. The trial court continued the Daubert hearing to March 3, 1997. On
February 19, 1997, Moeller’s counsel sought another continuance of the Daubert
hearing, arguing that they did not have time to review the evidence and adequately
prepare. The trial court denied the continuance request, finding that Moeller’s counsel
had nearly three months to prepare and conduct testing of the State’s evidence. At the
Daubert hearing, Moeller’s counsel received a standing objection to the admissibility
of the DNA evidence, but did not conduct meaningful cross-examination of the State’s
experts, and Moeller did not present his own expert. The trial court permitted the
DNA evidence, including evidence related to the APO-B marker, to be introduced at
trial.
The State introduced this evidence through Moses Schanfield, an expert who
had also previously performed some DNA analysis for Moeller. Schanfield testified
about the APO-B marker and other DNA markers. During trial, Moeller’s counsel
thoroughly cross-examined Schanfield, and the State’s other DNA experts, about their
methodology, reliability, and control procedures of their testing. The State’s experts
testified that, based on testing conducted on semen taken from O’Connell’s body, the
DNA evidence demonstrated that the probability of a person in the Caucasian
population having DNA characteristics common to Moeller’s would be 1 in 130
million if the APO-B marker was not included. If the APO-B marker was included,
the probability would be 1 in 14.8 billion.
The State also submitted the testimony of a soil expert, John Wehrenberg, at
Moeller’s second trial. Wehrenberg had testified at Moeller’s first trial about his
analysis of soil samples found at the crime scene and soil samples found on Moeller’s
truck and his finding that the soil may have come from the same place. Wehrenberg
also testified at Moeller’s first trial that both samples contained a rare mineral,
gahnite. Prior to Moeller’s second trial, Wehrenberg wrote a letter indicating that
gahnite was “very rare.” Moeller argued that this was an untimely, new conclusion
-3-
Appellate Case: 10-2069
Page: 3
Date Filed: 08/12/2011 Entry ID: 3817471
and requested that the trial court conduct a Daubert hearing regarding the soil
evidence. The trial court rejected the request, but permitted Moeller to depose the
expert prior to his testimony at the second trial. During the second trial, Moeller’s
counsel cross-examined Wehrenberg extensively about his gahnite findings, and
Moeller presented his own soil expert in response to Wehrenberg.
A jury again convicted Moeller of first-degree murder and first-degree rape.
The penalty phase began one day later, with the same jury. Neither side presented
evidence or called witnesses during the penalty phase. During penalty-phase
deliberations, the jury sent the following question to the trial judge: “If the penalty of
‘life imprisonment without parole’ should be imposed upon the defendant, will he
EVER have a chance to appear before a parole board?” The word “EVER” was in all
capital letters and underlined three times. The trial judge, after consulting with the
parties, answered the question as follows, “We acknowledge your note asking
questions about life imprisonment without parole. All of the information which I can
give you is set forth in the jury instructions.” The jury instructions twice referred to
the jury’s sentencing options as “life imprisonment without parole,” and also used the
terms “life imprisonment” and “life sentence.” The verdict form included only two
sentencing options: “life imprisonment without parole” and “death.” The jury
returned a sentence of death.
The South Dakota Supreme Court affirmed Moeller’s conviction and sentence.
Moeller I, 616 N.W.2d at 430. Moeller then filed a state habeas corpus petition,
which the trial court denied in its entirety, and the South Dakota Supreme Court
affirmed the trial court’s decision. Moeller v. Weber, 689 N.W.2d 1, 4 (S.D. 2004)
(“Moeller II”). Moeller filed a petition for writ of habeas corpus under 28 U.S.C. §
2254 in federal district court. Moeller’s petition asserted numerous claims, all of
which the federal district court denied. The district court granted Moeller a certificate
of appealability limited to the following five issues:
-4-
Appellate Case: 10-2069
Page: 4
Date Filed: 08/12/2011 Entry ID: 3817471
A.
Whether Moeller is entitled to federal habeas corpus relief based on his
trial counsel’s performance at the March 3, 1997, Daubert hearing and
the ultimate admission of expert testimony regarding the APO-B region
of the DNA evidence;
B.
Whether Moeller is entitled to federal habeas corpus relief based on his
trial counsel’s failure to have tested the alleged gahnite which was the
subject of the State’s soil expert’s testimony, and/or based on the trial
court’s failure to conduct a Daubert hearing and the subsequent
admission of expert testimony regarding the alleged gahnite;
C.
Whether Moeller is entitled to federal habeas corpus relief based on the
trial court’s response to the jury’s question regarding whether Petitioner
would ever have a chance to appear before a parole board;
D.
Whether a pretrial screening requirement of the Due Process Clause of
the Fifth Amendment requires that the aggravating circumstance upon
which Moeller’s death sentence was based be returned by a grand jury
in an indictment or be set forth in an information under South Dakota
law; and
E.
Whether Moeller is entitled to federal habeas corpus relief based on the
trial court having admitted evidence of Moses Schanfield’s DNA testing
and Schanfield’s testimony at Moeller’s trial.
II.
When a state court has adjudicated a habeas petitioner’s claim on the merits, we
may only conduct a very limited and extremely deferential review both as to the facts
and the law. See 28 U.S.C. § 2254(d). With regard to the deference owed to factual
-5-
Appellate Case: 10-2069
Page: 5
Date Filed: 08/12/2011 Entry ID: 3817471
findings of a state court’s decision, we are bound by those findings unless the state
court made a “decision that was based on an unreasonable determination of the facts
in light of the evidence presented in the State court proceeding.” 28 U.S.C. §
2254(d)(2). Additionally, we must presume that a factual determination made by the
state court is correct, unless the petitioner “rebut[s] the presumption of correctness by
clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
Regarding deference owed to the application of the law under section
2254(d)(1), we may not grant a writ of habeas corpus unless the state court’s decision
“was contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. §
2254(d)(1). As explained by the Supreme Court in Williams v. Taylor, 529 U.S. 362
(2000), a state court acts contrary to clearly established federal law if it applies a legal
rule that contradicts the Supreme Court’s prior holdings or if it reaches a different
result from one of that Court’s cases despite confronting indistinguishable facts. Id.
at 399. Further, “it is not enough for [the court] to conclude that, in [its] independent
judgment, [it] would have applied federal law differently from the state court; the state
court’s application must have been objectively unreasonable.” Rousan v. Roper, 436
F.3d 951, 956 (8th Cir. 2006).
As the Supreme Court recently noted, “[f]or purposes of § 2254(d)(1), ‘an
unreasonable application of federal law is different from an incorrect application of
federal law.’” Harrington v. Richter, ___ U.S. ___, 131 S. Ct. 770, 785 (2011)
(quoting Williams v. Taylor, 529 U.S. 362, 410 (2000)). The Antiterrorism and
Effective Death Penalty Act of 1996 “preserves authority to issue the writ in cases
where there is no possibility fairminded jurists could disagree that the state court’s
decision conflicts with [Supreme Court] precedents. It goes no farther.” Id. at 786.
Put simply, “[i]f this standard is difficult to meet, that is because it was meant to be.”
Id. Thus, “[i]t bears repeating that even a strong case for relief does not mean the state
-6-
Appellate Case: 10-2069
Page: 6
Date Filed: 08/12/2011 Entry ID: 3817471
court’s contrary conclusion was unreasonable.” Id. The Supreme Court further
explained:
Section 2254(d) reflects the view that habeas corpus is a “guard against
extreme malfunctions in the state criminal justice systems,” not a
substitute for ordinary error correction through appeal. Jackson v.
Virginia, 443 U.S. 307, 332, n.5, (1979) (Stevens, J., concurring in
judgment). As a condition for obtaining habeas corpus from a federal
court, a state prisoner must show that the state court’s ruling on the claim
being presented in federal court was so lacking in justification that there
was an error well understood and comprehended in existing law beyond
any possibility for fairminded disagreement.
Harrington, 131 S. Ct. at 786-87.
III.
Moeller reasonably elected to concentrate his oral argument exclusively on his
claim that he is entitled to habeas relief because the trial court’s response to a jury
question regarding Moeller’s eligibility for parole was inadequate, leaving the
remaining issues for consideration on the briefs. We address the issues in that same
order.
Under the Due Process Clause of the Fourteenth Amendment, when a
defendant’s future dangerousness is put before the jury, the jury must be informed of
the defendant’s parole eligibility. Simmons v. South Carolina, 512 U.S. 154, 156
(1994). This requirement is based on the long-standing principle that “[t]he due
process clause does not allow the execution of a person ‘on the basis of information
which he had no opportunity to deny or explain.’” Id. at 161 (citing Gardner v.
Florida, 430 U.S. 349, 362 (1977)). The due process requirement may be satisfied
“either by a jury instruction or in arguments by counsel.” Shafer v. South Carolina,
532 U.S. 36, 39 (2001) (quoting Ramdass v. Angelone, 530 U.S. 156, 165 (2000)); see
-7-
Appellate Case: 10-2069
Page: 7
Date Filed: 08/12/2011 Entry ID: 3817471
also Kelly v. South Carolina, 534 U.S. 246, 253 (2002) (holding that the state raised
the issue of future dangerousness and, under Simmons, the defendant was therefore
entitled to a jury instruction regarding the defendant’s eligibility for parole, where
arguments of counsel were insufficient to inform the jury).4
In Simmons, the state raised the issue of future dangerousness of the defendant
to the jury during the penalty phase of the defendant’s capital murder trial. The trial
court refused to instruct the jury regarding the defendant’s parole ineligibility, and
instead affirmatively instructed the jury “not to consider parole or parole eligibility
in reaching” their sentencing verdict. Id. at 160. The trial judge further instructed the
jury that “life imprisonment should be understood in its ‘plain and ordinary’
meaning.” Id. at 170. The jury returned a sentence of death. Id. at 160. The Supreme
Court held that such instructions were insufficient to satisfy the Due Process Clause
because “the jury was left to speculate about [the defendant’s] parole eligibility when
evaluating [his] future dangerousness, and was denied a straight answer about [his]
parole eligibility even when it was requested.” Id. Thus, the Court held that “where
the defendant’s future dangerousness is at issue, and state law prohibits the
defendant’s release on parole, due process requires that the sentencing jury be
informed that the defendant is parole ineligible.” Id. at 156.
4
To be precise, the clearly established federal law relevant to Moeller’s petition
is set forth in the holding of Simmons. Kelly and Shafer were decided after Moeller’s
conviction became final on direct appeal and we need not decide whether they
constitute clearly established law for this case. See Williams v. Taylor, 529 U.S. 362,
412 (2000) (Supreme Court law that “would qualify as an old rule under . . . Teague
jurisprudence will constitute ‘clearly established Federal law, as determined by the
Supreme Court of the United States’ under § 2254(d)(1)”) (citing Teague v. Lane, 489
U.S. 288 (1989); further citations omitted). That said, and as the Moeller II court
implicitly determined, nothing in these more recent cases altered the rule in Simmons
for purposes of Moeller’s claim.
-8-
Appellate Case: 10-2069
Page: 8
Date Filed: 08/12/2011 Entry ID: 3817471
Moeller argues that the trial judge’s response to the jury’s question regarding
whether he would ever appear before a parole board violated the clearly established
federal law set forth in Simmons. The South Dakota Supreme Court addressed, and
rejected, this argument in its entirety. Moeller I, 616 N.W.2d at 461. In doing so, the
South Dakota Supreme Court determined that “future dangerousness was not
specifically raised as a concern by [the] State,” but regardless, “while not explicitly
instructed that ‘life means life,’ the jury here was informed that a sentence of life
imprisonment was ‘life imprisonment without parole.’ Indeed, those were the very
words used on the sentence verdict form.” Id. In light of this, “[a]sking the jury to
refer back to the instructions as given was a proper reply, as the instructions correctly
set forth the law.” Id. at 461-62.
The South Dakota Supreme Court addressed this issue a second time during
Moeller’s state habeas corpus proceedings. Moeller II, 689 N.W.2d at 8-9. That
court, applying Simmons and its progeny, reiterated its earlier decision and found that
“[t]here is no ambiguity in an instruction which defines life imprisonment as ‘life
without parole.’” Id. at 8. Thus, the South Dakota Supreme Court determined that,
“Moeller’s constitutional rights were not violated by the trial court’s instruction and
subsequent response to the jury question. Indeed, any further explanation would have
been at best redundant and at worst confusing. The trial court was correct in not
elaborating on an already proper instruction.” Id. at 8-9.
Much ink has been spilled on the question of whether the State raised Moeller’s
future dangerousness during either the guilt or penalty phases of his trial, and whether
the due process requirement under Simmons was triggered at all. We find it
unnecessary to decide that question.5 Assuming the State raised Moeller’s future
5
To be clear, we make no determination regarding whether Simmons applies to
cases in which the State raises future dangerousness of the defendant only during the
guilt phase of a trial, nor do we find that the State raised the future dangerousness of
Moeller during either the guilt or penalty phase of his trial.
-9-
Appellate Case: 10-2069
Page: 9
Date Filed: 08/12/2011 Entry ID: 3817471
dangerousness at trial, the trial court clearly instructed the jury that they could
sentence Moeller to a term of “life imprisonment without parole” as the only
alternative to “death.” While Moeller is correct that the jury instructions used the
terms “life imprisonment” and “life sentence,” the verdict form itself included only
two clear sentencing options: “life imprisonment without parole” or “death.” Moeller
has not cited any clearly established federal law stating that jury instructions and a
verdict form instructing the jury that the alternative to a death sentence is “life
imprisonment without parole” are in any way insufficient to satisfy the due process
requirement set forth in Simmons. See Knowles v. Mirzayance, 556 U.S. 111, ___
(2009) (“But this Court has held on numerous occasions that it is not ‘an unreasonable
application of clearly established Federal law’ for a state court to decline to apply a
specific legal rule that has not been squarely established by this Court.”). Indeed, the
clearly established law required only that the jury be informed of Moeller’s parole
eligibility, either by jury instruction or in arguments of counsel. See Shafer, 532 U.S.
at 39 (describing the holding of Simmons). The trial court did just that.
Affording the South Dakota Supreme Court the substantial deference it is due,
we find that it reasonably applied Simmons and other clearly established federal law
in rejecting Moeller’s claim relating to the jury question. As such, Moeller is not
entitled to relief under 28 U.S.C. § 2254 on this claim.
IV.
We next turn to Moeller’s claims that the South Dakota Supreme Court violated
clearly established federal law when it determined that Moeller’s counsel performed
reasonably even though they (1) failed to actively participate in the Daubert hearing
regarding DNA evidence; and (2) failed to test soil evidence from the crime scene and
from Moeller’s vehicle.
We review ineffective assistance of counsel claims under the familiar
framework set forth in Strickland v. Washington, 466 U.S. 668, 694 (1984).
-10-
Appellate Case: 10-2069
Page: 10
Date Filed: 08/12/2011 Entry ID: 3817471
Strickland requires that a petitioner demonstrate both that his counsel’s performance
was deficient, and that such deficient performance prejudiced the petitioner’s defense.
Id. at 687; see also Bryson v. United States, 268 F.3d 560, 561-62 (8th Cir. 2001);
Williamson v. Jones, 936 F.2d 1000, 1004 (8th Cir. 1991). In conducting such a
review, we must “indulge a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689. Put
simply, counsel’s “strategic choices made after thorough investigation are virtually
unchallengeable” in a later habeas corpus action. Id.
Additionally, the Supreme Court has emphasized that the deference due the
state courts under 28 U.S.C. § 2254 applies with vigor to decisions involving
ineffective assistance of counsel claims. Knowles, 556 U.S. at 111. In Knowles, the
Justices stressed that under the Strickland standard, the state courts have a great deal
of “latitude” and “leeway,” which presents a “substantially higher threshold” for a
federal habeas petitioner to overcome. Indeed, the question “is not whether a federal
court believes the state court’s determination” under the Strickland standard “was
incorrect but whether that determination was unreasonable–a substantially higher
threshold.” Id. at ___ (quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)).
The record is undisputed that Moeller’s counsel did not actively participate in
the DNA-related Daubert hearing. However, the South Dakota Supreme Court
determined that Moeller’s challenge to the DNA evidence related only to “APO-B
DNA evidence,” and that, even if the APO-B DNA evidence had been excluded, the
remaining DNA evidence showed that “the probability of a person in the Caucasian
population having DNA characteristics common to Moeller’s would be 1 in 130
million.” Moeller II, 689 N.W.2d at 10-11. Because Moeller submitted “no testimony
or other evidence that might have led to the exclusion of any DNA evidence based on
any marker other than the APO-B marker at the Daubert hearing,” Moeller did not
“realistically demonstrate that the performance of his defense attorneys in regard to
most of the DNA evidence was ineffective.” Id. at 10.
-11-
Appellate Case: 10-2069
Page: 11
Date Filed: 08/12/2011 Entry ID: 3817471
The South Dakota Supreme Court further found that Moeller’s counsel’s failure
to participate in the Daubert hearing was a trial strategy and that counsel “vigorously”
and “effectively” challenged all of the DNA evidence at trial, including the APO-B
DNA evidence. Id. In particular, counsel cross-examined the State’s DNA experts
and secured critical admissions from those experts, called into question the validity
of all of the DNA evidence in closing argument, and used the lack of validation of the
APO-B DNA evidence to call into question all of the other DNA evidence. Id.
Taking into consideration counsel’s conduct during trial, the South Dakota Supreme
Court applied Strickland and determined that counsel’s strategy was reasonable and
that Moeller suffered no prejudice as a result of his counsel’s strategy. Id. at 10-11.
Moeller argues the South Dakota Supreme Court violated clearly established
law when it considered counsel’s handling of the DNA evidence during the entire
trial, rather than only during the DNA-related Daubert hearing.6 We have found no
clearly established law, nor has Moeller cited to any, that prevents a state court from
considering counsel’s entire performance at trial when determining his or her
effectiveness at a pretrial evidentiary hearing. Granting substantial deference to the
South Dakota Supreme Court’s opinions, we find that it did not unreasonably apply
Strickland and other clearly established federal law in rejecting Moeller’s claim
relating to the DNA Daubert hearing.
Regarding Moeller’s other ineffective assistance of counsel claim, the South
Dakota Supreme Court determined that counsel performed reasonably when they
6
Moeller also argues that the South Dakota Supreme Court violated clearly
established federal law in applying Strickland, rather than United States v. Cronic, 466
U.S. 648, 659 (1984), because the DNA Daubert hearing was a critical stage of the
proceeding at which Moeller was effectively denied counsel. However, Moeller cites
no clearly established federal law stating that a Daubert hearing is a critical stage of
the proceeding, thus implicating a Cronic analysis, rather than a Strickland analysis.
The South Dakota Supreme Court therefore did not violate clearly established federal
law in applying Strickland to Moeller’s ineffective assistance of counsel claim.
-12-
Appellate Case: 10-2069
Page: 12
Date Filed: 08/12/2011 Entry ID: 3817471
failed to test mineral evidence submitted by the State because they actively pursued
another challenge to the mineral evidence. In particular, “defense counsel chose to
proceed with a theory that the State’s expert was mistaken in his conclusion that a soil
analysis could isolate any locale in the eastern part of the State. . . . Proceeding under
such a theory was neither unreasonable nor ineffective.” Id. at 11. As such, the South
Dakota Supreme Court did not unreasonably apply clearly established federal law and
no relief is warranted under 28 U.S.C. § 2254.7
In addition to his ineffective assistance of counsel claims, Moeller argues that
he is entitled to habeas corpus relief because the trial court ultimately admitted both
the APO-B region of the DNA evidence and the expert testimony regarding gahnite.
Applying federal law, the South Dakota Supreme Court rejected both of these claims.
As to the admission of the APO-B region of DNA evidence, the South Dakota
Supreme Court noted that the state habeas corpus court “effectively conducted what
might be referred to as a ‘post-conviction’ Daubert hearing,” at which Moeller still
failed to “convince the habeas court that the evidence based on the ABO-B marker
failed to meet [South Dakota’s] admission standards.” 689 N.W.2d at 12. Thus, while
the APO-B DNA evidence “may not have satisfied every critic,” “perfect agreement
is not a prerequisite to admission of scientific evidence.” Id. at 13-14.
7
Moeller’s argument rests, in part, on evidence presented during the state habeas
corpus proceedings that gahnite was not actually present in the sample tested by the
State’s expert. For a variety of reasons, the South Dakota Supreme Court rejected this
argument, finding that the “newly discovered evidence” did not amount to a
constitutional violation. Moeller II, 689 N.W.2d at 7-8. This is especially true
because Moeller’s counsel had the samples prior to the second trial, but reasonably
chose not to test them, electing instead to proceed with its alternative theory that a soil
analysis could not isolate any particular location in the eastern part of South Dakota.
Id. The South Dakota Supreme Court’s findings do not violate clearly established
federal law, and to the extent Moeller’s ineffective assistance of counsel claim rests
on the “newly discovered” gahnite evidence, we reject it.
-13-
Appellate Case: 10-2069
Page: 13
Date Filed: 08/12/2011 Entry ID: 3817471
Regarding the admission of the gahnite testimony, and the trial court’s failure
to conduct a Daubert hearing regarding that testimony, the South Dakota Supreme
Court found that a May 1991 report mentioned gahnite as being of “substantial
interest,” and that Moeller’s counsel had therefore been placed “on notice that gahnite
had been identified as a possible piece of evidence linking him to the crime scene.”
Moeller I, 616 N.W.2d at 447. Thus, there was no “late disclosure.” Further, the
South Dakota Supreme Court applied federal law and determined that a
Daubert hearing was unnecessary because “the challenged evidence did not present
any new scientific theory, and the methodologies were neither complex nor unusual,”
and “there was no evidence in the record that Wehrenberg’s methodology or analysis
was so skewed as to alter the otherwise reliable scientific method.” Id. at 449.
As with his ineffective assistance of counsel claim, we find that the South
Dakota Supreme Court did not unreasonably apply clearly established federal law in
rejecting both of Moeller’s claims relating to the subsequent admission of evidence
based on those claims.
V.
The South Dakota Supreme Court also rejected Moeller’s remaining claims.
Regarding Moeller’s argument that he is entitled to habeas corpus relief because the
State’s DNA expert, Schanfield, conducted DNA testing for both him and the State,
the South Dakota Supreme Court noted the “considerable conflict of authority as to
under what circumstances an expert witness retained by one party will be allowed to
testify upon request of the other party.” Moeller I, 616 N.W.2d at 444. Applying this
conflicting law, the South Dakota Supreme Court determined that, “[t]here was no
abuse of discretion in admitting Schanfield’s expert testimony, because both sides
were aware that he was performing work for the other side. While we do not condone
such practice by any witness, we see no prejudice.” Id. at 445.
-14-
Appellate Case: 10-2069
Page: 14
Date Filed: 08/12/2011 Entry ID: 3817471
The South Dakota Supreme Court also considered and rejected Moeller’s final
argument, that any aggravating circumstance must have been returned in an indictment
or set forth in an information under South Dakota law.8 In doing so, that court applied
federal law and determined that the eight-month “notice of aggravating factors given
to Moeller was sufficient.” Moeller II, 689 N.W.2d at 21. Thus, “[i]nsofar as Moeller
had considerable advance notice of the aggravating factors to be considered in the
sentencing phase of his case and the jury considered those factors and found them to
exist beyond a reasonable doubt, Ring’s holding, if applicable, has been followed
here.” Id. (citing Ring v. Arizona, 536 U.S. 584, 584 (2002)).
After reviewing the record, and the South Dakota Supreme Court’s opinions,
we find that it did not violate clearly established federal law in making its
determinations on these remaining claims. Additionally, Moeller has not submitted
any clear and convincing evidence that the South Dakota Supreme Court’s decisions
were based on an unreasonable determination of the facts in light of the evidence
presented in the state court proceedings. Thus, Moeller is not entitled to relief under
28 U.S.C. § 2254 on these remaining claims.
For the foregoing reasons, the judgment of the district court is affirmed.
______________________________
8
Since Moeller did not brief this claim, he has waived it. Nonetheless, since the
district court granted a certificate of appealability regarding the claim, we briefly
address it.
-15-
Appellate Case: 10-2069
Page: 15
Date Filed: 08/12/2011 Entry ID: 3817471
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?